The topic of parental rights has become more difficult to understand in recent years, as technology and science has developed to bring children into the world in unconventional ways. One of these is by way of gestational carrier, otherwise known as a surrogate. In the 1980s, New Jersey’s Supreme Court ruled that a surrogate has the right to keep the child if she chooses to. At that time, the surrogate was usually the biological mother of the child who donated her egg and agreed to simply carry the child and surrender her rights to the adoptive parent/mother and biological father. Today, though, it is possible for a woman to carry a fetus that she has no biological connection to. This has created an issue in surrogate situations today in that the law has yet to catch up to reproductive science.
When a couple decides to enter into a surrogacy relationship, it is usually because they are having trouble conceiving for a number of reasons. There are agencies that will pair a couple with a woman who has agreed to carry a fetus for the length of the pregnancy, and then give the child to the couple upon delivery. The surrogate typically is not perceived as a parent to that child. In order to uphold such an agreement, many couples and the agency will create a surrogacy-for-hire contact which will generally state that the surrogate must surrender the child upon delivery, as well as dictate what the surrogate is allowed to do and eat while carrying the couple’s child.
A 1988 New Jersey Supreme Court case voided these contracts, deciding they were legally unenforceable. The Court ruled that the surrogate was entitled to keep the child because she was the biological mother, as her egg was combined with the father’s sperm. In this case, the wife to the biological father was not considered to have any parental rights. In a 2012 case, the Court let stand a lower court ruling that once again decided the wife of a man who is the father to a child of an anonymous egg donor does not have parental rights.
The issue has resurfaced today because it is now possible for a woman to carry a fetus with no biological connection to her. As of now, New Jersey does not legally enforce surrogacy contracts that would ensure that the surrogate surrenders the child—who was created from another woman’s egg and a man’s sperm—upon delivery even though the child is not biologically her own.
Today, New Jersey’s legislature is working to pass a bill known as the “New Jersey Gestational Carrier Agreement Act,” which would ultimately allow for the legal enforcement of these surrogate-for-hire contracts. This would require that a written contract be drawn up in which a woman would agree to carry and give birth to a child that she has no genetic connection to and is created using “assisted reproduction.” Upon delivery of the child, the intended parent will become the parent of the child and the surrogate would have no parental rights. The bill also requires the following:
- the gestational carrier be at least 21 years of age
- the gestational carrier has given birth to at least one child before
- the gestational carrier is represented by a lawyer with interests separate from those of the intended parents and that the lawyer’s services are paid for by the intended parents.
- the intended parents would also be required to pay any fees the surrogate encounters in connection with the pregnancy such as medical bills, counseling, living expenses, prenatal vitamins, and even postpartum recovery expenses.
Because New Jersey’s new Democratic Governor, Phil Murphy, supports the legislation, it is expected that a bill may finally be passed. Republican Governor Chris Christie had vetoed the passage of similar bills in 2012 and 2015.
Navigating the issue of parental rights and adoption can be challenging and emotional. The New Jersey family attorneys at Hunziker, Jones, & Sweeney are experienced in helping families through legal issues regarding custody, visitation, and establishing parental relationships. For more information or to schedule a consultation, please call us at (973) 256-0456.